Three Big Questions Hanging Over Net Neutrality

Here’s what the FCC under Hillary Clinton or Donald Trump will have to sort out.

When the Federal Communications Commission enacted landmark net neutrality rules last year, it solidified the issue as a signature one for the Obama administration. But the battle over the “open Internet” did not end then, and a number of unresolved issues will be left for the next administration.

A June decision by the federal appeals court for the District of Columbia circuit rejected challenges to the new rules, which ban Internet service providers from blocking or throttling legal content and prohibit business transactions in which an Internet service provider agrees to prioritize content on its network (the dreaded Internet “fast lane”).

That means opponents of net neutrality, including the Republican presidential nominee Donald Trump, must hope the D.C. circuit appeals court rehears the case, or that the Supreme Court takes it on. Hillary Clinton, the Democratic nominee, has supported the Obama administration’s actions on net neutrality and would be likely to continue advocating for the new rules as debate over how to regulate ISPs continues.

Federal Communications Commission chairman Tom Wheeler

Below are three important questions hanging over the future of Internet regulation.

Will you have to pay for privacy?

The FCC took a bold and controversial step last year when it enacted its new rules, changing the classification of broadband from an “information service” to a “telecommunications service.” That allowed the agency to begin regulating ISPs under stricter laws that govern so-called common carriers—service providers that transport goods or people, like airlines, trucking companies, and telephone companies.

In April, the FCC proposed new privacy rules for ISPs. They would be allowed to use certain data without consent because it is crucial to providing the service. And they could use customer data for “communications-related” marketing, but customers would be able to opt out. For everything else, customers would have to opt in, and access to the service could not be predicated on opting in. That’s unique, at least on the Internet. The FCC argues that unique privacy regulations are required because ISPs can “capture a breadth of data that an individual streaming video provider, search engine or even e-commerce site simply does not.”

Comcast is urging the agency to allow ISPs to offer customers “discounts or other value” in exchange for their data, prompting backlash from groups that say such deals would discriminate against customers with lower incomes. The FCC could finalize the privacy rules before the end of this year.

What’s the real reason your Netflix movie is loading so slowly?

Under the new rules, the FCC has the authority for the first time to oversee the business arrangements that providers make to connect their networks to each other. Such deals first entered the public spotlight a few years ago, when many Netflix customers began experiencing poor performance.

What followed was a public dispute between Comcast and Netflix, which blamed the ISP for intentionally allowing performance to degrade at points where its network connects with the networks of companies Netflix pays to transport traffic across the Internet’s “backbone.” Netflix called on the FCC to take a greater role in overseeing the business arrangements around these connection points, called interconnections. A subsequent study by Measurement Lab, a policy research consortium, revealed months-long patterns of poor broadband performance for customers of the major ISPs. The authors inferred that this was due to issues at interconnections, concluding that some didn’t have sufficient capacity.

But without access to detailed proprietary information from the ISPs, we can’t be certain this was the cause of the poor performance, says Nick Feamster, director of the Center for Information Technology Policy at Princeton University.

It’s too early to tell if the FCC’s new power to police these business arrangements will lead to fewer performance problems.

Will this debate ever end?

Because it has so many facets, the debate over what should be allowed in the “open Internet” is bound to continue for years. It’s not clear yet, for example, how regulators might address the emerging practice of “zero rating,” in which wireless providers allow customers to use certain applications without having the data from those applications count against data usage caps. Some say this kind of arrangement violates net neutrality, especially in the case of deals like AT&T’s “sponsored data” plan, which allows companies to pay to have data from their apps treated this way.

Meanwhile, critics of the FCC’s new rules argue, among other things, that the blanket ban on “paid prioritization,” or business deals in which customers pay ISPs to have their traffic given precedence, could have the unintended consequence of stifling innovation. Doug Brake, a telecommunications policy analyst at the Information Technology and Innovation Foundation, argues that paid prioritization wouldn’t necessarily harm consumers and could open up new applications, like specialized video conferencing with an assured level of quality, or certain applications of virtual or augmented reality.

Ultimately, opponents of the rules will keep fighting them in court. And it’s a distinct possibility that eventually the Supreme Court could take up the case.